December 2016 Notes: Accepting the Realities of Social Media & Online Reviews

Is Social Media a Detriment to Your Career? Proving that “trolling” can happen even in the staid world of the daily papers, Georgetown professor Cal Newport – who proudly proclaims that he has “never had a social media account” – has penned a piece in the New York Times arguing that professionals should quit social media because it can hurt their careers. That’s an awful lot like a teetotaler saying that drinking booze is dangerous: undeniably true, but also wholly lacking any perspective on the potentially positive aspects of the subject. For that, read the reaction to Newport’s piece from Kevin O’Keefe – who knows a thing or two about both the risks and the benefits of professional use of social media.

Law Firm Gets Bench-Slapped Over Review Suit. As I am constantly telling attorneys, filing a lawsuit over a negative review is almost always the worst thing you can do. Even if you’re correct, and the reviewer has defamed you, it’s rarely worth it. Defendants can be hard to find, they’re likely to be judgment-proof even if you do find them, and the Streisand Effect dictates that the mere fact of your lawsuit will bring more attention to the negative review than it ever would have gotten on its own. So . . . suffice it to say that suing when you don’t have a legitimate claim, and doing so in a state like Texas, that provides robust anti-SLAPP protection for expression, is a uniquely moronic move. Just ask the Tuan A. Khuu law firm, which filed a suit like that, and now finds itself on the wrong side of a $27K judgment for the defendant’s legal fees – and a heap of bad publicity.

“Consumer Review Freedom Act” soon to be enacted. And speaking of negative reviews . . . one clever way that some businesses (and even attorneys) have tried to avoid such things is by adding a “gag order” into their terms of use or fee agreements. This provision purports to bar the client from writing anything negative online. Such terms sometimes carry liquidated damages, and sophisticated forms will prospectively transfer copyright in such reviews to the business owner, enabling the self-help recourse of a DMCA take-down notice. It should go without saying that such terms are, as Jackie Chiles would put it, “outrageous, egregious, preposterous.” And fortunately, Congress agrees. Both houses have now passed the Consumer Review Freedom Act. Once signed by the president, this law will prevent gag orders in consumer contracts nationwide, and lawyers can focus on providing great service rather than trying to censor their clients.